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DOJ agrees: ‘Insular Cases deserve no place in our law’

Guam vice speaker says policy announcement purely symbolic

 By Jayvee Vallejera

In a historic move, the U.S. Department of Justice has announced a department-wide policy to reject the racist and “repugnant” language of the Insular Cases—a move welcomed by civil rights advocates, but met with “cautious optimism” by Vice Speaker Tina Barnes of the Guam legislature.

In a letter to House Natural Resources Committee Ranking Member Raúl M. Grijalva—who led a bipartisan, 43-member congressional group last year to ask the DOJ to expressly condemn the Insular Cases—Assistant Attorney General Carlos Felipe Uriarte said the DOJ “emphatically agrees…that the racist language and logic of the Insular Cases deserve no place in our law.”

The Insular Cases are a series of early 1900s Supreme Court decisions that denied the overseas U.S. territories democracy and self-determination based on the Supreme Court’s judgment that their residents were “alien races” and “savage tribes.” 

Uriarte’s letter states that the DOJ “unequivocally condemns the racist rhetoric and reasoning of the Insular Cases, and unambiguously shares your view that such reasoning and rhetoric are irreconcilable with foundational American principles of equality, justice, and democracy.”

In line with this, Uriarte said DOJ litigators will no longer rely on the racist rhetoric and reasoning of the Insular Cases.

A DOJ news release said it sent identical letters to the other congressional members who signed on to Grijalva’s letter, as well as to U.S. Virgin Islands Gov. Albert Bryan Jr.

Grijalva said he was pleased. “This is an important step toward the Supreme Court finally overruling these discriminatory decisions, which have served to justify the denial of equal rights and self-determination to communities of color in U.S. territories for nearly 125 years.” 

Bryan described the DOJ decision as a monumental step toward a fair government for all Americans, regardless of where they live. “There should not be one set of constitutional rules for people who live in the mainland and another for people who live in the U.S. territories,” he said, adding that this new policy acknowledges the inherent dignity and rights of U.S. territories and their residents.

Adi Martínez Román, co-director of Right to Democracy, an organization that works to dismantle the undemocratic colonial framework in U.S. territories, said the DOJ’s actions help clarify that it is unacceptable to deny people democracy or self-determination just because of where they live or who they are.

Neil Weare, co-director of Right to Democracy, said they are gratified to see the DOJ recognize that the relationship between the United States and its territories cannot be based on stereotypes and discrimination.

“It’s an important first step towards a broader recognition that the United States needs to address the undemocratic framework that continues to govern people in U.S. territories,” he added.

U.S. Virgin Islands Delegate Stacey Plaskett, who led a press conference last month calling on the DOJ to act, said, “I am pleased that the Department of Justice has used this crucial opportunity to denounce the Insular Cases."

The announcement, she added, "is an important step in advancing equity for the U.S. territories. I am proud to see our efforts come to fruition—and have the Department of Justice clarify their position and denounce this racist, colonial framework. I will continue to advocate for the reversal of the Insular Cases to ensure the fair treatment of the residents of all the U.S. territories.”

The American Civil Liberties Union also welcomed this development, with Adriel I. Cepeda Derieux, deputy director of the ACLU’s Voting Rights Project, saying, “[The Insular Cases] rulings have always been at war with core values of justice and democracy.” 

Other civil rights groups and allies that also welcomed this news included Alejandro Ortiz, senior staff attorney of the ACLU’s Racial Justice Program; Lía Fiol-Matta, senior counsel at LatinoJustice PRLDEF; U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee; and House Judiciary Committee Ranking Member Jerrold Nadler (D-N.Y.).

Barnes, however, only expressed cautious optimism, describing the DOJ move as largely symbolic because the department “has made it clear” it will continue to support the foundational legal arguments of the Insular Cases: that the U.S. Constitution does not fully apply to America's territories, those who were born in a territory, and eventual residents of territories. 


“This move away from the indefensible, ugly language of ‘alien races’ and ‘savage tribes’ is long overdue by the federal government. …It would be dishonest, however, to not acknowledge this progress as mostly symbolic,” she said in a statement yesterday.

Muna Barnes said this recent development only underscores the need for what she called a “direct solution.” That direct solution, she said, means the U.S. Congress must pass a law that expressly redefines the rights of U.S. territories and its people.

“The sad fact is the prevailing case doctrine holds that Congress has the power to include—and exclude—the rights granted to the governments and people of the modern-day colonies of the United States,” she said.

Muna Barnes pointed out that she has long championed this cause and has actually testified in the U.S. Congress that “Congress does not have to wait. This is the opportunity…to propose sweeping legislation to address these inequities, protect our individual cultures, and pursue self-determination. This is the time where we can take this opportunity to move forward.” 

Muna Barnes said the DOJ’s latest decision puts its lawyers in an awkward position when faced with legal cases affecting U.S. territories: “On one hand, the [DOJ] will condemn the Insular Cases for its use of ‘repugnant’ language, while on the other hand rely on these same cases to argue the Constitution only applies ‘in part’ to territories.”

The United States has five populated territories: Guam, the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands and American Samoa.


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